Allahabad High Court
Ram Adhar Singh Yadav vs State Of U.P.Thru Addl.Chief ... on 4 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 433
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 21 Case :- SERVICE SINGLE No. - 2941 of 2020 Petitioner :- Ram Adhar Singh Yadav Respondent :- State Of U.P.Thru Addl.Chief Secy.Public Works Deptt. &Ors. Counsel for Petitioner :- Rakesh Kumar Singh Counsel for Respondent :- C.S.C.,Shishir Jain Hon'ble Saurabh Lavania,J.
Heard Sri Rakesh Kumar Singh, learned counsel for the petitioner, Sri Alok Sharma, learned Addl. Chief Standing Counsel for the respondent No. 1 and Sri Shishir Jain, learned counsel for the respondent Nos. 2 to 6.
By means of the present writ petition, a challenge has been made to the order dated 04.12.2019, whereby the petitioner has been repatriated to his parent Department i.e. Public Works Department of State of Arunachal Pradesh.
It is stated that the petitioner was sent on deputation from the Public Works Department of State of Arunachal Pradesh to U.P. Rajkiya Nirman Ltd. (in short "Nigam") vide order dated 01.07.2014 and pursuant to the same, he was permitted to join the duties of Nigam on 17.07.2014. In this regard, reliance has been placed on the letter dated 18.07.2014 (Annexure No. 3 to the writ petition).
It is further stated that during the period of deputation in Nigam, the petitioner performed his duties and responsibilities with full satisfaction of the Authorities concerned. However, on the basis of the enquiry report dated 30.11.2019, the petitioner has been repatriated vide order impugned dated 04.12.2019. So far as the case of the petitioner is concerned, the enquiry report is vague. The petitioner is not responsible for the allegations made in the report dated 30.11.2019, which relate to Inter Unit Transaction. In this regard, learned counsel for the petitioner placed reliance on Para No. 246 of the Basic Responsibilities of Staff and Officers, which provides basic duties of sub-Engineers of the Nigam.
It is also stated that in the facts of the case, the order of repatriation dated 04.12.2019, mentioning therein the allegations related to embezzlement is unsustainable in law and is liable to be interfered with by this Court.
Per contra, Sri Shishir Jain, learned counsel appearing for the Nigam submitted that admittedly the petitioner has discharged the duties in Nigam on deputation and deputationist has no right to continue on the said post.
It is also stated that the petitioner was sent on deputation vide order dated 01.07.2014 and he has completed 5 year on deputation in the Nigam and as per the Rules known as The Uttar Pradesh Absorption of Government Servants in Public Undertakings Rules, 1984 (in short "Rules, 1984"), a deputationist cannot continue after expiry of 5 years. The relevant portion of the Rules, 1984 is quoted hereunder:-
"4. Time limit for deputation: No Government servant shall ordinarily be permitted to remain on deputation for a period exceeding five years."
It is also stated that a deputationist can be repatriated, if his/her integrity is found doubtful and in the instant case, the integrity of the petitioner has been found doubtful and for the said reason, the respondent No. 6/Additional Project Manager, Uttar Pradesh Rajkiya Nirman Nigam Limited, Bahraich has recommended for deputation of petitioner and initiation of disciplinary proceedings against the petitioner. In this regard, reliance has been placed on letter of respondent No. 6 dated 02.12.2019 (Annexure No. 7 to the writ petition). The petitioner has been repatriated keeping in view the fact that certain allegations have been made against him in the enquiry report. The integrity of the petitioner, prima facie, is doubtful, so he has been repatriated. The order of repatriation is justified in the facts of the case. In this regard, reliance has been placed on the judgment of the Apex passed in the Case of Kunal Nanda v. Union of India and Another reported in (2000) 5 SCC 362.
"5. Heard the learned counsel for the appellant and Shri R.N. Trivedi, learned Additional Solicitor General. The least said about the conduct of the appellant, the better for him. The appellant, indisputably, is only a deputationist so far as CBI is concerned and his parent Department is only CRPF and his substantive position and appointment is only in that Department and ordinarily a deputation, as per governing Rules, cannot last for a period more than five years. The frivolous claim that a person like him need not be a graduate for absorption and appointment in CBI, apart, the appellant appears to have rendered himself unreliable by making, to put it in the most mild terms, an incorrect representation of his basic educational qualification to be a graduate while factually it is not so, and this one ground, strongly urged is enough to non-suit him. This itself will be sufficient to disentitle him to even continue in CBI any longer. The Screening Committee which appears to have initially recommended for absorption also seems to have proceeded on the basis of the erroneous representation of the appellant of his basic educational qualification and the copy of the proceedings made available disclose this serious lapse and consequently no advantage can be claimed on the basis of the recommendation, made on a mistaken view of the facts more so, when such mistake was the making of the appellant himself. This assertion of the respondent CBI Department was specific and reiterated in unmistakable terms from the beginning before the Tribunal [vide paras 4(h) and 5 of the reply] and thereafter before the High Court in the counter filed [vide para 3(e)] and finally before this Court also [vide para 5(c) of the counter filed on behalf of the respondent]. Throughout, the response of the appellant to those assertions at various stages was evasive and nebulous and neither direct nor specific in refutation of the facts in particular. Being an appeal under Article 136 of the Constitution of India, this Court will be justified in even rejecting this appeal, on this ground alone.
6. On the legal submissions also made there are no merits whatsoever. It is well settled that unless the claim of the deputationist for a permanent absorption in the department where he works on deputation is based upon any statutory rule, regulation or order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. The reference to the decision reported in Rameshwar Prasad v. M.D., U.P. Rajkiya Nirman Nigam Ltd. [(1999) 8 SCC 381 : 2000 SCC (L&S) 60] is inappropriate since the consideration therein was in the light of the statutory Rules for absorption and the scope of those Rules. The claim that he need not be a graduate for absorption and being a service candidate, on completing service of 10 years he is exempt from the requirement of possessing a degree needs mention, only to be rejected. The stand of the respondent Department that the absorption of a deputationist being one against the direct quota, the possession of basic educational qualification prescribed for direct recruitment i.e. a degree is a must and essential and that there could be no comparison of the claim of such a person with one to be dealt with on promotion of a candidate who is already in service in that Department is well merited and deserves to be sustained and we see no infirmity whatsoever in the said claim."
This Court in the case of Ravindra Singh v. State of U.P. reported in [2015 (33) LCD 1915] after considering the judgment passed by the Apex Court in the case of Kunal Nanda (supra) and various other judgments on the issue in question observed that no person has right to continue in a foreign service and it is always open to the competent Authority to repatriate the employee concerned to his parent department.
In Ratilal B. Soni and others. Vs. State of Gujrat and others, 1990 (Supp) SCC 243, the Court held :-
"5.The appellants being on deputation they could be reverted to their parent cadre at any time and they do not get any right to be absorbed on the deputation post....."
The concept of transfer and deputation has been explained by the Apex Court in Prasar Bharti and others Vs. Amarjeet Singh and others 2007 (2) SCALE 486 and it has been held that a person sent in a cadre outside his substantive cadre has no right to continue in foreign cadre and can be repatriated to his parent cadre at any point of time without assigning any reason. Further, the authorities cannot be required to assign any reason, whatsoever, in an order of transfer and such power of transfer cannot be fettered by requiring them to record reason. Which employee should be posted where is absolutely within the domain of the authority concerned and unless it is shown that a order of transfer/repatriation is contrary to the statutory rules or is otherwise mala fide or has been passed by the incompetent authority, only then the Court may interfere and not otherwise. (See: State of U.P. Vs. Ashok Kumar Saxena AIR 1998 SC 925, Mohd. Masood Ahmad Vs. State of U.P. & others JT 2007 (12) SC 467).
The Apex Court in U.P. Gram Panchayat Adhikari Sangh & Ors. Vs. Daya Ram Saroj & Ors. (2007) 2 SCC 138 held that the persons having been sent to deputation have no right to continue and they can be repatriated to their parent department.
A Division Bench of this Court also in Gauri Shanker Vs. State of U.P. and Others 2005 (1) AWL 426 held as under:
".........A deputationist has no right to remain on deputation and he can be sent back to his Parent Department at any time......."
The same view has been followed by another Division Bench of this court in the case of Dr. Seema Kundra Vs. State of U.P. 2003 (1) AWL 520.
In Devi Kumar Vs. Rajya Krishi Utpadan Mandi Parishad 2004 (3) UPLBC 2318, this court observed as under:
".........The period of deputation originally fixed can be cut short, if considering necessary, a deputationist has no right to continue in the deputation post........."
This court in Ashok Kumar Pandey Vs. State of U.P. and Others, writ petition no 52527 of 2005, decided on 3rd August 2005, held:
".........It is well settled that a deputationist has no right to remain on deputation and he can be sent back to his Parent Department at any time........"
Heard the submissions advanced by learned counsel for the parties and perused the record.
The admitted facts of the present case are to the effect that the petitioner was sent on deputation on 01.07.2014 and he joined the post in issue in the Nigam on 17.07.2014 and till passing of the order impugned dated 04.12.2019, he continued on the said post. The Rule quoted above specifically provides the term of the deputationist on deputation, according to which ordinarily a deputationist can serve only upto 5 years and not beyond that period.
It also appears from the record that after taking into consideration the contents of enquiry report/letter dated 30.11.2019 of respondent No. 5/General Manager, U.P. Rajkiya Nirman Nigam Limited, Ayodhya Region, Ayodhya and the letter dated 02.12.2019 of the respondent No. 6, whereby repatriation of the petitioner has been recommended, the petitioner has been repatriated to his parent department. Initiation of disciplinary proceedings against the petitioner has also been recommended.
In nutshell, the case of the petitioner is that he is a deputationist and he cannot be repatriated on the basis of the allegations made against him. Accordingly, he may be allowed to continue on deputation.
No rule or pronouncement either of this Court or the Apex Court has been placed before this Court in support of right to continue as deputationist in Nigam.
In regard to right of a deputationist, now it is settled principle that a deputationist can always and any time be repatriated to his parent department to serve in his substantive position, in other words on his substantive post, at the instance of either of the departments and there is no vested right in such person to continue for long on deputation in the department, in which he had gone on deputation.
Keeping in view the aforesaid admitted position as well as the settled legal position with regard to right of deputationist, this Court is of the view that the order impugned dated 04.12.2019 is not liable to interfered with.
For the foregoing reasons, the writ petition lacks merit. Accordingly, it is dismissed.
At this stage, learned counsel for the petitioner submitted that the salary of four months has not been paid to the petitioner.
In this regard, Sri Shishir Jain, learned counsel for the respondent Nos. 2 to 6 has stated before this Court that the salary of the period served by the petitioner would be released in his favour within 15 days, if there is no other legal impediment.
Order Date :- 4.2.2020 Arun/-